United States v. Michael Dale

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1481
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United States of America, *
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Plaintiff – Appellee, *
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v. *
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Donroy Ghost Bear, *
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Defendant – Appellant. *
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Appeals from the United States
No. 09-1642 District Court for the
___________ District of South Dakota.
[UNPUBLISHED]
United States of America, *
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Plaintiff – Appellee, *
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v. *
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Shane Tyon, *
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Defendant – Appellant. *
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Submitted: December 15, 2009
Filed: July 21, 2010
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1The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
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Before BYE, BEAM and COLLOTON, Circuit Judges.
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BYE, Circuit Judge.
Donroy Ghost Bear and Shane Tyon pleaded guilty pursuant to plea agreements
to one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(a). On appeal, Ghost Bear and Tyon argue the Fort Laramie
Treaty of 1868 divested the district court of jurisdiction to hear their case. In addition,
Ghost Bear challenges the district court’s1 determination that he was not entitled to a
two-level reduction for acceptance of responsibility under the Sentencing Guidelines.
We affirm.
I
The plea agreements reveal the following facts. In 2001, Ghost Bear became
involved with a group in South Dakota transporting and selling cocaine. Tyon later
became a member of the same group. During the conspiracy, Ghost Bear and Tyon
imported more than five kilograms of cocaine into South Dakota.
Ghost Bear and Tyon are members of the Oglala Lakota Sioux Tribe and
resided on the Pine Ridge Indian Reservation located near Rapid City, South Dakota.
In January 2007, federal agents executed a warrant to arrest Ghost Bear; he was
arrested on the reservation. The record does not indicate where Tyon was arrested.
After a grand jury indicted both men on various drug charges, Ghost Bear and
Tyon moved for dismissal of all charges on the grounds that the Treaty of Fort
Laramie of 1868 barred prosecution. The district court denied the motion. Ghost

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Bear and Tyon subsequently pleaded guilty pursuant to written plea agreements to one
count each of conspiracy to distribute a controlled substance, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(a). Ghost Bear and Tyon’s plea agreements
contained provisions waiving their right to appeal. Both appeal waivers, however,
included exceptions for challenges to the district court’s jurisdiction as well as the
“right to appeal the sentence for a determination of ‘reasonableness’ should the Court
impose a sentence above the advisory guideline range established by the Court for the
offense.”
At sentencing, Ghost Bear sought a two-level reduction of his offense level for
acceptance of responsibility, see U.S.S.G. § 3E1.1(a). The district court declined to
apply the two-level reduction. Ultimately, the district court imposed a sentence of 151
months on Ghost Bear and 120 months on Tyon, both sentences within the Guidelines
range.
Ghost Bear and Tyon timely appeal.
II
We review the district court’s subject matter jurisdiction de novo. See Keene
Corp. v. Cass, 908 F.2d 293, 296 (8th Cir. 1990).
As a starting point, 18 U.S.C. § 3231 provides that “[t]he district courts of the
United States shall have original jurisdiction, exclusive of the courts of the States, of
all offenses against the laws of the United States.”
Ghost Bear and Tyon cite the so-called “Bad Men” provision of the Fort
Laramie Treaty of 1868, which states:

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If bad men among the Indians shall commit a wrong or depredation upon
the persons or property of any one, white, black, or Indian, subject to the
authority of the United States, and at peace therewith, the Indians herein
named solemnly agree that they will, upon proof made to their agent and
notice by him, deliver up the wrong-doer to the United States, to be tried
and punished according to its laws.
Treaty with the Sioux, Apr. 29, 1868, U.S.-Sioux, art. I, 15 Stat. 635.
According to Ghost Bear and Tyon’s argument, the “Bad Men” provision
requires the United States to give notice before seizing persons in Indian country. As
a corollary, Ghost Bear and Tyon contend that failure to give notice as contemplated
by the treaty is a jurisdictional defect barring prosecution in federal court.
We rejected the same arguments in United States v. Drapeau, 414 F.3d 869, 878
(8th Cir. 2005). In Drapeau, we held that the plain language of the treaty:
does not create the sort of ‘notice’ requirement that [the appellant]
envisions. The treaty does not say that the United States must give notice
to an Indian tribe before the government may arrest and prosecute a
tribal member who has violated the federal drug trafficking laws. Rather,
the treaty imposes an obligation on the tribe to ‘deliver up the
wrong-doer to the United States,’ upon proof and notice to the tribe.
Id. In addition, the Drapeau court held that to the extent the treaty could be construed
to impose a notice and request obligation on the United States, Congress’ grant of
citizenship to the Indians, 8 U.S.C. § 1401(a)(2) (now § 1401(b), see Pub. L. No.
95-432, § 3, 92 Stat. 1046 (1978)), “makes them ‘subject to all restrictions to which
any other American citizen is subject, in any state,’ and that the ‘legislative history
and the language of the statute itself are sufficient expression of a clear Congressional
intent to abrogate or modify any treaty provisions to the contrary.’” Id. (citation
omitted).

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Drapeau controls this case. We hold the district court did not err when it
concluded subject matter jurisdiction existed in this case.
III
Next, Ghost Bear challenges the district court’s determination that he was not
entitled at sentencing to a two-level offense level reduction for acceptance of
responsibility, see U.S.S.G. § 3E1.1(a). The government contends Ghost Bear waived
his right to appeal this issue. We agree.
An appeal waiver is enforceable where the appeal falls within the scope of the
waiver, both the plea agreement and the waiver were entered into knowingly and
voluntarily, and no miscarriage of justice would result from enforcing waiver. United
States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc).
Here, the appeal of the denial of the two-level reduction is within the scope of
the waiver. The only relevant exception to the waiver was Ghost Bear’s “right to
appeal the sentence for a determination of ‘reasonableness’ should the Court impose
a sentence above the advisory guideline range established by the Court for the
offense.” Because Ghost Bear’s sentence fell within the Guidelines range, and
because Ghost Bear is not seeking review of the sentence’s reasonableness, the appeal
waiver applies. Further, there is no suggestion by Ghost Bear that he did not enter
into the plea agreement knowingly and voluntarily. Finally, we conclude no
miscarriage of justice would result from enforcing the waiver. See id. at 891-92 (the
miscarriage-of-justice exception to enforcing an otherwise valid appeal waiver is
extremely narrow and “an allegation that the sentencing judge misapplied the

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Sentencing Guidelines or abused his or her discretion is not subject to appeal in the
face of a valid appeal waiver”).
IV
Affirmed.
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